Woodhead International Pty Ltd v. Toma

[2007] QDC 316

[2007] QDC 316

DISTRICT COURT

CIVIL JURISDICTION

JUDGE WHITE

Claim No 96 of 2005

WOODHEAD INTERNATIONAL PTY LTD

Plaintiff

and

ALISTAIR TOMA

and

THE TOMA GROUP PTY LTD

First Defendant

Second Defendant

CAIRNS

..DATE 22/11/2007

JUDGMENT

HIS HONOUR:  At all material times the plaintiff carried on business as architects with offices in both Brisbane and Cairns.  At all material times the second defendant was a property developer undertaking a building project at Yorkeys Knob near Cairns referred to as Yorkeys Knob South Beach Apartments.  The first defendant was at all material times the principal director of the second defendant.

The claim was commenced by the filing of a claim and statement of claim on the 13th of April 2005.  It is a very straightforward claim.  It alleges an agreement between the plaintiff and the first defendant that the plaintiff's Cairns office would carry out architectural work in relation to the project.

It alleges that it carried out work pursuant to the agreement, rendered invoices in respect of that work.  Some payments were made in respect of such invoices, others not.  The claim in respect of the agreement concerning the Cairns office is for $130,637.44, being the balance remaining unpaid.

The statement of claim alleges a similar agreement, that the plaintiff's Brisbane office would carry out architectural work in respect of the same project.  The plaintiff rendered invoices in respect of such work.  Some were paid, and others not.  The claim in respect of the agreement concerning the Brisbane office work is for $30,045.75, being the balance remaining unpaid.

The total claim is made against the second defendant in the alternative taking into account the possibility that the first defendant entered into the agreements as agent for the second defendant rather than for himself.  There is a further claim for interest.

The defendants engaged Cairns solicitors to act on their behalf.  On the 15th of June 2005 a notice of intention to defend and defence were filed on behalf of the defendants.  It substantially admitted the allegations in the statement of claim.  There were a few non-admissions, but they were based solely on the first defendant's lack of recollection.

The defence alleged some additional terms.  Importantly, it alleged that the plaintiff would only carry out work when expressly directed to by the defendants.  It alleged that some of the work was carried out without such express direction, but did not give any particulars.

The defence also allege that it was a term of the agreements that the plaintiff would carry out its work pursuant to the agreements exercising due care, skill and diligence, and comply with all relevant laws and statutory requirements.

It was alleged that the plaintiff breached that term, but the particulars of the breach was that the plaintiff designed a building of such bulk that a submitter appeal against the Cairns City Council's preliminary approval of the second defendant's application for a material change of use was upheld.

There were some preliminary skirmishes.  The plaintiff requested particulars of the defence, which were not provided.  The defendants consented to an order that they provide particulars with costs on the 23rd of February 2006.  There was an attempted mediation, which was unsuccessful.

On the 6th of July 2006 the defendants filed a notice of change of solicitors to appoint a Brisbane firm to act for them.  The plaintiff's solicitors requested a list of documents from the defendants.  This was not provided.

On the 11th of December 2006 I ordered that paragraphs 11, 12 and 13 of the defence be struck out.  The plaintiff's solicitors delivered a request for trial date which was not signed by the defendants.  On the 16th of February 2007 I ordered that the defendants' signature be dispensed with.

On 27 March 2007 the defendants' Brisbane solicitors applied for leave to withdraw.  In the meantime the defendants appointed a third solicitor, Joe Ryan, Solicitors of Bondi Junction, New South Wales.  A notice of change of solicitors was filed on the 17th of April 2007.  By this time the claim had been listed for trial on the 19th of April 2007.

On the 16th of April 2007 her Honour Judge Bradley ordered that the trial be adjourned with the defendants to pay the plaintiff's costs.  This was on the defendants application because the new solicitors were unable to be ready for trial.  Judge Bradley also ordered that the defendants deliver an amended defence and counterclaim by the 28th of May 2007.  On 28th of May 2007 these documents were filed by the defendants.  On the 19th of June 2007 the defendants engaged its fourth firm of solicitors, Moray & Agnew of Brisbane.

MR JACOBS:  I'm sorry, your Honour‑‑‑‑‑

HIS HONOUR:  Sorry?

MR JACOBS:  ‑‑‑‑‑that would be McCabe Terrill‑‑‑‑‑

HIS HONOUR:  McCabe - I beg your pardon - McCabe Terrill of Brisbane, and a notice to that effect was filed on that date.  On the 28th of April 2007 - sorry, Mr Jacobs, did they go from Ryan directly to McCabe Terrill?  I thought they went to Moray & Agnew first?

MR JACOBS:  Moray & Agnew are the solicitors for the plaintiff, your Honour.

HIS HONOUR:  I see.  All right.  That should be on the 23rd of August 2007 the defendants made a change of solicitors to McCabe Terrill of Sydney.  The counterclaim filed on the 28th of May 2007 made a claim to be repaid $45,891,95, which was allegedly over-paid to the plaintiff and "damages".  No particulars were given.

Paragraph 14 of that counterclaim was as follows:

"Further, the second plaintiff has suffered loss and damage as a result of the plaintiff's breach of the Cairns office contract.  Particulars will be provided shortly."

On 21st of September 2007 I made the following orders:

"1.  The first and second defendants provide further and

better particulars of the amended defence and counterclaim on or before 26 September 2007 by serving:

(a)a further amended defence and amended counterclaim; or

(b)a complete response to the plaintiff's request for

further and better particulars contained in the letter dated 16 August 2007."

These orders were made by consent.

On the 26th of September the defendants filed an amended counterclaim.  This document pleaded for the first time a cause of action in negligence and a cause of action for misleading and deceptive conduct pursuant to section 52 of the Trade Practices Act. 

In respect of all claims, the damages are alleged as follows, paragraph 14:

"Further, the second defendant has suffered loss and damages as a result of the plaintiff's breach of the Cairns office contract.  Particulars:
(a)  $30,041.95 paid by the second defendant to the

plaintiff for the services and/or work; and

(b)  $6,006,565.75 incurred as a consequence of the

subcontractors referred to in paragraph 2(c) above, carrying out work based on the plans and schematics prepared by the plaintiff on the assumption that the development approvals would be granted, as well as various other losses including opportunity losses suffered by the second defendant as a consequence of the breach of the Cairns contract."

The plaintiff now applies for the amended counterclaim filed on the 26th of September 2007 to be struck out for failure to comply with the orders of 21st of September 2007.

In my view, the amended counterclaim does not address the order made on the 21st of September 2007 in any meaningful way.  Therefore, unless the defendants can show good reason for not doing so, it must be struck out.

The defendants have had trouble with their previous solicitor.  No explanation is given for why they changed solicitors on the last occasion, however, that previous solicitor is purporting to exercise a lien over the file in this action, as well as other files, to enforce the payment of all outstanding fees.  There is litigation proceeding about this issue in the Supreme Court of New South Wales.  It is suggested that the particulars sought cannot be given until that file is recovered.  This might well be so. 

However, this action had proceeded for some considerable time and had advanced even to the point of being listed for trial before the solicitors, who are now refusing to deliver up the relevant file, were even engaged.  The whole proceeding has been attended by prevarication and delay on the part of the defendants and/or their legal representative. 

Further delay is likely to occur.  Firstly, the litigation in the Supreme Court of New South Wales needs to be concluded.  No doubt the solicitors for the defendants will then need some time to examine those files, so as to provide proper particulars of the amended counterclaim.

Further, the affidavit of the first defendant indicates that it is the defendants' intention to apply to have the whole action removed to the Supreme Court by reason of the amount of quantum of the defendants' counterclaim.

On balance, it would be desirable if the plaintiff's claim and the defendants' counterclaim were tried together.  However, that is not always essentially so.  In my view, the issues associated with the plaintiff's claim and the defendants' defence to the plaintiff's claim are in relatively short compass and relatively simple.  They should be able to be tried relatively quickly.  On the other hand, the expansive basis upon which the counterclaim is brought, and the very substantial amount of that claim, in my view it is unlikely to take a short time to try if there is, in fact, any substance to the counterclaim.

Therefore, in my view, there will not be a great inefficiency involved in the plaintiff's claim and the defendants' counterclaim being tried separately.  If the counterclaim is struck out, then the defendants will be able to have their wish.  They can commence a new action in the Supreme Court and pursue the counterclaim in that Court, if so advised.

I am therefore not satisfied that good reason has been shown to permit the amended counterclaim to stand in the hope that sometime in the future the defendants will be able to comply with the order made on the 21st of September 2007.  I order that the defendants' amended counterclaim filed on the 26th of September 2007 be struck out.
...
HIS HONOUR:  I order that the defendants pay the plaintiff's costs of and incidental to the counterclaim, to be assessed on the standard basis.  I order that the defendants pay the plaintiff's costs of and incidental to this application, to be assessed on an indemnity basis.

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